1 August 2003

The spate of scams involving some members of the Indian higher judiciary in corruption, bribery, sex, nepotism and abuse of power has again drawn attention to the long overdue need for reform of the judicial system. The image of the judiciary and its credibility are perhaps at an all-time low. The problem of corruption comes on top of the problem of judicial inertia and the prohibitively expensive nature of the process of securing justice. This has effectively ensured that the judicial system cannot deliver justice to the ordinary citizen. All this suits the ruling establishment just fine, since those who have the power of force or money do not need the courts to get justice. It is the poor and the oppressed, the common people who need a properly working system for the administration of justice. This is also why those who have the power to reform the system have failed to do so despite knowing the problems and the solutions. It has become clear that judicial reforms will only come when the general public, who are the consumers of justice, put together a strong and powerful movement on this issue.

There are enough indications that corruption in the higher judiciary has reached unacceptable levels. For instance, in March this year, Justice Shamit Mukherjee of the Delhi High Court had to tender his resignation, following which he was arrested by the Central Bureau of Investigation under sections of the Anti-corruption Act, 1988 and sections of the Criminal Procedure Code for criminal conspiracy. Rampant corruption, which has steadily undermined the credibility of and popular faith in the judicial mechanism, was clearly to be expected in a situation where the higher judiciary enjoys enormous powers without accountability.

Armed with legal immunity, the judicial corruption has continued to flourish.

Power sans accountability inevitably breeds corruption and abuse. Consider the situation. Once appointed, a judge of a high court (the highest judicial mechanism in the states) or the Supreme Court, cannot be touched except by a complicated procedure of impeachment. As per the constitutional provisions, a judge of a high court or the Supreme Court can only be removed by impeachment after 100 members of the Lok Sabha (the lower house) or 50 members of the Rajya Sabha (the upper house) move the speaker, who may refer the charges to a committee of judges whose verdict is put up before both the houses of Parliament. The judge can only be removed if a two third-majority of members present and voting approve the verdict of the committee.

Today impeachment remains the only option since the judicial system has insulated itself from criminal investigation through a Supreme Court ruling. This happened in 1991 in a case arising from the discovery of huge quantities of money in the residence of Justice K Veeraswamy, then Chief Justice of the Madras High Court. When the Central Bureau of Investigation prosecuted for corruption, the Supreme Court ruled that no First Information Report can be registered against a judge, nor a criminal investigation be initated, without prior consent of the Chief Justice of the Supreme Court. This effectively excluded the higher judiciary from the ordinary laws of the land, since there is no possible circumstance under which an investigating agency can approach the Chief Justice for consent to investigate a judge without any concrete evidence against him. This is the reason why no judge has ever been subjected to a criminal investigation after the Veeraswami judgment. In the meanwhile, armed with this legal immunity judicial corruption has continued to flourish.

This immunity is doubly reinforced by the fact that the procedure for impeachment of judges is not only cumbersome, it is also eminently susceptible to political interference. The existing system of impeachment was found to be practically unworkable in the V Ramaswamy case, where the judge survived in office despite being found guilty on several serious charges of corruption by a statutory committee of three fellow judges. This was because members of the Congress, then in power during the prime ministership of P V Narasimha Rao, abstained from voting due to a whip issued by the party leadership when the impeachment motion was put to vote in Parliament in May 1993. In that particular case, however, it was at least possible to initiate the process, because the charges against the judge dealt with irregularities in purchases made in his official capacity. These purchases were audited by the Accountant General and it was in that process that the evidence of corruption came out. As a result, it was possible to frame charges for his impeachment and have the relevant procedural motions signed by 100 members of Parliament. In normal cases of judicial corruption however, it is difficult to produce evidence of the judge’s corruption in the absence of official investigation. Thus, it is not possible to even initiate the process of impeachment, let alone carry one through to the bitter end.

Judges’ sellout Apart from enjoying immunity from removal and investigation, the higher judiciary further enjoys virtually unlimited powers of punishing people for contempt of court. Any person making any allegation of corruption against a sitting judge can be charged and punished for contempt, even if he is in a position to substantiate the charge. The contempt proceedings are so biased in favour of the judicial system that the very judge against whom the allegation of corruption has been made can prosecute the charge for contempt. The judge can even sit in judgment on his or her own cause, and can actually refuse to permit the alleged contemnor to lead evidence to prove the charge. This is such a vast and unchecked power that it can easily be and has been misused by the judiciary.

The excessive power that the judiciary wields in respect of contempt is in reality a way of shielding itself from legitimate criticism even when such criticism does not otherwise prejudice or obstruct the administration of justice. The existence of this arbitrary power is undoubtedly one of the main reasons why public exposure of judicial corruption has been few and far between and even routine criticism of the judiciary is muted.

Beyond the matter of public scrutiny, the Indian judiciary has been steadily increasing its other powers over the years, adding vast and arbitrary authority ostensibly for enforcing the fundamental rights of citizens. However, these powers are usually exercised in the interests of the ruling establishment. More and more instances are being witnessed where, by judicial fiat, the constitutional mandate is flouted and even the fundamental rights of liberty, equality and right to work are rendered nugatory when ordinary citizens are pitted against the state and powerful sections of society. This is how, for instance, in the interest of cleaning up Delhi’s air by reducing the levels of pollution, the Supreme Court ordered the closure and relocation of several small industries in the city, leading to the loss of livelihood for several thousand workers.

Apart from the fact that the method of selection of judges itself is defective, the entire process is kept under a cloak of secrecy.

As it is, the state has a long record of enacting anti-democratic and draconian laws. Not only have the courts usually put their seal of approval on these laws, but they have sanctified action taken under them, such as the dismissal of employees en-masse from industrial jobs. The judiciary has also recently been playing a leading role in upholding the sellout of public enterprises by disinvestments carried out under the cover of globalisation. Lately, it has played a retrograde role in curbing the rights of workers to protest and go on strike, endorsing several antidemocratic measures to restrict their rights. Meanwhile, the proliferation of public interest litigations has encouraged unrestrained judicial activism. Though judicial activism through public interest litigations can be a healthy check on an executive which has failed and become corrupt, it can become a menace in the hands of a corrupt and unaccountable judiciary.

The problems with the higher judiciary, however, begin with the process of appointment itself. Quite apart from the fact that the method of selection of judges itself is defective, the entire process is kept under a cloak of secrecy. Thus, before an appointment is actually made, the general public does not have any idea about who are being considered for the post. Many persons whose integrity was known to be suspect and those who had been found guilty of professional misconduct during their legal career have come to be appointed to high office through this secretive system. The selection process has undergone some change over the years, but it has not reduced the spate of undesirable and positively harmful appointments. While earlier the selection was made by the government itself (after consultations with the Chief Justice), now, by a process of judicial interpretation, the power has been transferred to a collegium of three to five judges of the Supreme Court. This has managed to reduce the government’s monopoly over appointments, but the system has not change significantly. The patronage system has simply become more fraternal, since senior judges of the Supreme Court now wield the power of appointment of their junior colleagues. The proof is in the results, and there has not been a noticeable difference in the quality of appointments.

National commission In an attempt to tackle the problem relating to appointments and accountability of judges, the Committee on Judicial Accountability (COJA), consisting of members of the legal profession, almost a decade ago forwarded a detailed proposal for a high-powered, full-time and independent National Judicial Commission (NJC). This commission would make appointments as also have disciplinary powers over judges of the higher judiciary. The commission would also be responsible for appointments to various commissions and quasi-judicial bodies. The NJC would comprise a nominee each of the Supreme Court, the chief justices of the high courts, the central cabinet, the opposition in Parliament, and the bar. It would also have an investigative machinery of its own to inquire into complaints against members of the judiciary. Members of the NJC would have the same status as that of Supreme Court judges and a guaranteed tenure of five years, after which they would be ineligible for any other similar post.

This proposal would have brought transparency into the system of appointment of judges. But even though nearly every political party included the proposal in its election manifesto, the National Judicial Commission is yet to become reality. The reasons are not far to seek. But now, after the spate of highly publicised judicial scandals, particularly the Shamit Mukherjee case, the government has come up with a proposal to constitute a somewhat truncated NJC. This commission is to be a part-time body of three senior sitting judges of the Supreme Court, the law minister and a nominee of the prime minister. This NJC will not have the power of removal of judges and the present impracticable system of impeachment will continue. The government’s proposal will merely institutionalise the system of sharing the spoils of appointment between the government and the senior members of the judiciary.

Since under the circumstances the judiciary cannot be expected to reform itself, and since the main political parties have reneged on their electoral commitment as expressed in their manifestos, only a strong public campaign can provide the impetus to put in place an independent and responsible body for the appointment and removal of judges. Popular pressure is the only force that can get the 1991 Veerasamy judgment overruled, whether legislatively or judicially, to ensure that judges can be investigated like any other class of citizens. Civic mobilisation is necessary to force change in the contempt law so as to ensure that citizens cannot be prosecuted for making allegations against judges, unless they have done so recklessly or in bad faith. The law must be changed so that judges cannot sit in judgement of their own contempt cases. If the judicial mechanism has to be rescued from its own infirmities, citizens and civil society in India must put together a strong movement to force accountability in the judiciary.

~Prashant Bhushan is an Indian lawyer, activist and a member of the Aam Aadmi Party.